Rising tensions in the South China Sea have cast a pall over many actors and issues, but not international law. Indeed, the United Nations Convention on the Law of the Sea (UNCLOS) and its mandatory dispute settlement mechanisms are arguably at the zenith of their popularity. Some believe that the U.S. Senate may soon finally ratify a treaty that has been adhered to by both Democratic and Republican administrations.
Perversely, the Obama administration’s focus on international law — with the arbitration ruling likely to be handed down shortly— may be badly undercut depending on how China reacts and behaves. Ideally, China would find in the ruling a diplomatic off ramp to avoid a clash at sea and promote new joint development of maritime resources.
However, such a diplomatic tack should not be assumed to be that probable. One hint is China’s long-adamant position that the panel’s ruling will be a legal nullity because of Beijing’s alleged indisputable sovereignty over South China Sea land features. Another less obvious clue is China’s systematic attempt to use diplomacy and economic inducements to enhance the malleability of each Southeast Asian claimant state.
Certainly the Obama administration is making no assumptions. Secretary of Defense Ash Carter and Secretary of State John Kerry, along with Senator John McCain and Pacific Command Commander Admiral Harry B. Harris, Jr., have signaled that actions such as declaring an Air Defense Identification Zone (ADIZ), starting reclamation at Scarborough Shoal, or overtly militarizing land features in the Spratly Islands would require tough, cost-imposition measures by Washington. The temporary deployment of airborne electronic attack and close-air support aircraft (Navy EA-18 Growlers and Air Force A-10 Warthogs, respectively) put an exclamation mark on recent diplomatic signals.
Chinese leaders no doubt know that an ADIZ could not be enforced by Beijing, that assertive actions over disputed features would risk direct military engagement with the U.S. military, and that President Xi himself has pledged not to militarize at least the Spratly Islands (having now made clear that militarizing the Paracel Islands was not part of that pledge to made to President Obama last fall). Indeed, on this last point, Beijing insists it is Washington that is militarizing the South China Sea.
Although China often appears busy building what Secretary of Defense Carter called a “Great Wall of self-isolation” with its maritime assertions, it’s simultaneously seeking to outmaneuver the world in shaping a new geopolitical order — or at least keeping a step ahead of international law.
The imminent ruling from The Hague on disputes in the South China Sea could be a momentous occasion for international jurisprudence, or just a footnote in the war of words over rocks and reefs. Dueling narratives may be the decisive factor, pitting Beijing’s preference for bilateral, à la carte diplomacy against Washington’s preference for universal rules and principles.
Although China will likely be rebuffed in court on its many technical violations of international maritime law, the arbitrators may avoid the most vexing issue — the legality of the controversial 9-dash line covering the vast majority of the South China Sea. Moreover, the arbitrators will probably have to stop short of issuing a cease and desist order.
But even if the arbitrators lean as far forward as international law permits, their work may change little. Amidst the long, drawn-out legal case, which was filed by the Philippines in 2013 and painstakingly researched and argued before the Permanent Court of Arbitration (PCA), China has been assiduously preparing to render the ruling virtually meaningless by positioning itself to win the contested peace through a campaign of might, money, and moxie. It does so through its own interpretation of international law, as well.
The case has been a target of China’s public ire and private diplomacy ever since. The People’s Republic has fought to undermine and discredit the Philippines v. China case, both in legal legitimacy and geopolitical import. Yet these efforts are only the tip of the strategic iceberg. Now Beijing is maneuvering to ensure the verdict lands no more than glancing blows on Xi Jinping’s “China dream.”
In the court of law, China has steadfastly refused to recognize the PCA’s jurisdiction. Decrying the trial as judicial overreach, the Chinese seats during the proceedings remained conspicuously empty. Under UNCLOS, the arbitration ruling is binding regardless of whether both parties assent, but China has sought to ensure the court of international opinion reaches a far murkier conclusion.
Chinese officials have not stopped at refusing to participate in a binding process. They have also actively sought to bust countervailing coalitions before they could cohere. For a time, countries neighboring the South China Sea were actively supporting the arbitration process, or at least observing how it might soon be applicable to their own claims and interests. Reading these tea leaves correctly, China spent the last few years actively disassembling any such nascent coalition. Chinese officials have consistently sought to keep the United States and its partners from rallying support around such mechanisms for dispute resolution.
To those ends, China has used its economic heft as an effective wedge to dampen the international legal ardor of the four Southeast Asian claimant states with which it has disputes in the South China Sea. For instance, as U.S. relations with Brunei cooled, China provided a joint energy exploitation deal in 2013. China is presently offering the tiny nation attractive infrastructure investment incentives associated with its regional One Belt One Road initiative that could secure the long-term economic health of Brunei as it attempts to wean itself off its dependence on exporting fossil fuel.
In Malaysia, China’s influence-purchasing has been less subtle. Prime Minister Najib Razak’s government was roiled by allegations of major corruption after investigators traced $700 million in missing funds from the troubled state investment vehicle 1MDB to Najib’s personal bank accounts. A Chinese state-owned enterprise bailed out the troubled fund last year, purchasing its energy assets to the tune of $2.4 billion. Despite both being claimant states in South China Sea territorial disputes, Brunei and Malaysia have been highly reticent to endorse the arbitration process of late. A summit of Southeast Asian defense ministers gathered in Kuala Lumpur last November presented a perfect opportunity for claimant states to help rally its neighbors to a forceful show of support for international arbitration, but no such statement materialized.
Vietnam and the Philippines, though also vulnerable to economic influence, have demonstrated how political transition can create openings for Chinese efforts at division as well. When Vietnam’s new defense minister met his nine counterparts at an Association of Southeast Asian Nations (ASEAN) Defense Minister’s Meeting last month in Laos, the final result was stunning. A senior official from an ASEAN country told us directly that the meeting ended by canvassing each minister’s thoughts about the South China Sea. Each delegation expressed their country’s grave concern until Vietnam’s defense minister responded to the question with baffling silence. Whether Vietnam’s recent political transition created pressure for international Communist Party unity or not, the episode left other participants scratching their heads about how a nation on the frontlines of China’s maritime coercion could pass up such a golden opportunity.
Despite being the initiator of South China Sea arbitration, the Philippines may now be facing its own crisis of political will. President-elect Rodrigo Duterte, whose populist campaign was sharply critical of the incumbent government, openly questioned the usefulness of his country’s arbitration case with China. Instead, he suggested that he could return to bilateral talks, or even back away from Philippine claims in exchange for infrastructure investments — news China welcomed with open arms. Though Duterte has since walked back some of his more off-the-cuff foreign policy pronouncements, the cracks in the region’s pro-arbitration coalition are harder to conceal when skepticism is coming from the original proponent.
These cracks were on full display during a meeting of foreign ministers from ASEAN earlier this month. The summit seemed ready to conclude on the side of arbitration and the rules-based international order, issuing a statement of “serious concern” with tensions in the South China Sea. The statement was interpreted as an unusually stern rebuke of China. But mere hours later, it was retracted as political will among the community seemed to collapse, and the ministers eventually left with no joint statement at all. The fragile coalition of states in support of strengthening a rules-based order had again crumbled after enough members were peeled off by Beijing.
Curiously, Indonesia — not technically a claimant state, but the largest Southeast Asian country, and one directly concerned about China’s increasing claim to waters around the resource-rich Natuna Islands — is currently playing the most assertive role among littoral countries. China vehemently protested the arrest of seven of its fishermen caught fishing illegally near the Natunas, according to Jakarta. But in the end, no one Southeast Asian nation can stand up to China’s pressure tactics. After all, as suggested above, every littoral state is seeking to maintain autonomy and protect sovereignty, but not at the expense of war with a major power.
Over the last three years, China has indeed proved adept at thwarting collective action among its neighbors. Since the Philippines v. China case was first filed in 2013, it was clear that Beijing had little chance to win an argument based on the legal merits. Instead, it has pursued a strategy to discredit and undermine its proceedings, sow discord among those states likely to benefit from the case, and make the geopolitical impact of a ruling meant to be clarifying instead as murky as possible. If Beijing can succeed at dividing the four claimant states whose interests are most directly at stake, the willingness of the rest of ASEAN to stand on principle from a more distant and abstract position is certainly in doubt.
Yet China’s history of weakening these rule-of-law coalitions should not be mistaken for the ability to build and hold blocs of opposition. After declaring it had gathered a list of 60 nations opposing The Hague’s jurisdiction over South China Sea disputes, only eight have since publicly confirmed their support of Beijing’s position.
Nonetheless, regardless of how the court’s verdict does or does not change facts on the ground, we should not expect China’s boundary-pushing behavior to change anytime soon. Even in the face of The Hague’s legal rebuke, China is likely to continue trying to discredit those international laws and norms impinging on its creeping assertions of sovereignty in the South China Sea and elsewhere.
International law should matter. ASEAN’s voice must be crystal clear about at least the core principles at stake, something that is impossible without unity from the key maritime states. Alas, China’s diplomatic strategy is designed to ensure that America’s heavy investment in a rules-based order does not yield big dividends at Beijing’s expense.
Dr. Patrick M. Cronin is Senior Director and Harry Krejsa is Research Associate at the Center for a New American Security (CNAS).
Image: U.S. Navy, Mass Communication Specialist 3rd Class Ian Schoeneberg